Online Reporter
Fidelis Munyoro-Chief Court Reporter
A MAGISTRATE’s decision in the case of Lindiwe Ndlovu, who had been charged with deliberate transmission of HIV under a law repealed during his prosecution, has been overturned.
High Court judge, Justice Maxwell Takuva, ruled that the decision of the lower court to dismiss Ndlovu’s application for referral to the Constitutional Court was legally flawed and riddled with procedural irregularities.
“This court cannot allow a decision that is so grossly unreasonable to stand,” said Justice Takuva in his judgment delivered last week.
“The magistrates’ court misdirected itself in holding that an application based on a point of law could be fatally defective for want of viva voce evidence.”
Ndlovu was arrested in March 2022 and charged under section 79 of the Criminal Law (Codification and Reform) Act, which criminalised the deliberate transmission of HIV. However, the law was repealed in May 2022 following the enactment of the Marriages Act, sparking a legal debate over whether the charges could still stand.
Ndlovu argued that his prosecution violated his constitutional right under section 70(1)(l) of the Constitution, which protects individuals from being convicted of acts that are no longer offences. Despite the repeal of the law, the magistrate dismissed Ndlovu’s August 2022 application to quash the charges.
The magistrate relied on section 17 of the Interpretation Act, which allows for the continuation of prosecutions under repealed laws. Aggrieved, Ndlovu sought a referral of the matter to the Constitutional Court, arguing that the continued prosecution raised significant constitutional questions.
However, the magistrate rejected the referral, labelling the application “frivolous and vexatious” and “fatally defective.”
Justice Takuva dismantled the magistrate’s reasoning, declaring that no viva voce evidence was required to determine the legal question at the heart of the case.
“The application was founded purely on a point of law,” he said. “The material facts were not in dispute and the absence of oral evidence could not render the application defective.”
The High Court also ruled that the magistrate erred by simultaneously declaring the application fatally defective and proceeding to determine its merits. Justice Takuva labelled this approach “internally contradictory and legally untenable,” adding, “A finding of fatal defect terminates the proceedings. A dead application cannot be adjudicated upon.”
Furthermore, the High Court found that the magistrate exceeded jurisdiction by interpreting constitutional questions instead of referring them to the Constitutional Court. “A subordinate court is a gatekeeper, not a decision-maker in constitutional matters,” Justice Takuva explained.
“By answering the very questions framed for referral, the court a quo usurped jurisdiction reserved for the apex court.”
In rejecting the magistrate’s characterisation of the application as frivolous and vexatious, Justice Takuva noted that the constitutional question arose directly from the magistrate’s own earlier ruling. “The matter was inherently serious and deserving of constitutional scrutiny,” he said.
The High Court set aside the magistrate’s decision and granted Ndlovu’s application for review, paving the way for the referral of her case to the Constitutional Court.
Justice Takuva concluded, “The irregularities in this case are so fundamental that this court has no option but to intervene.”
No order as to costs was made.
